The Constitutional Court recognizes the Atrato River as a subject of rights

Through the T622/16 verdict, the Colombian Constitutional Court Recognizes the Atrato River as subject of rights.

This historic sentence was born from the response to the action of guardianship presented in the “Tierra Digna” (Dignified Land) Center for Social Justice Studies, as a representative of a diverse variety of community councils in the Colombian department of Chocó with the objective of “…detaining the large scale use of diverse methods of mining extraction and illegal forest exploitation, including heavy machinery, dredgers and backhoes, and highly toxic substances, like mercury in the Atrato River (Chocó), it’s basins, marshes, wetlands and tributaries.”

Before the existence of this verdict, the people’s defense had already declared (2014) “a humanitarian and environmental emergency” regarding the reported cases of deaths and poisoning: thirty-five children from the Embera-Katio community died due to poisoning, and in 2013 there were over sixty reported cases of intoxication due to the consumption of contaminated waters.

Despite the alarming situation indicated by the defense and the diverse legal actions presented by the communities, no effective methods have been taken to resolve the issue. The guardianship action was rejected due to a lack of sufficient evidence of “irreversible consequences” (among other baseless motives), until the court decided to examine the case.

The decision of the Constitutional Court:

Carrying out a profound study of the case, the court has recognized the importance and the urgency of regarding the Atrato River as a living entity subject to rights, therefore ordering to:

“RECOGNIZE the Atrato River, it’s basins and marshes as a living entity subject to rights related to protection, conservation, maintenance and restoration at the hands of the state and the indigenous communities…”

Subsequently, the court ordered the national government to designate an advisor along with an additional advisor designated by the local communities that inhabit the Atrato River basin, to exercise the role of legal representatives and guardians of the river. In addition, they should respond to a commission of guardians of the Atrato River, made up of the designated guardians and an advisory board.

To guarantee these rights, the Court ordered the design and implementation of a “plan to decontaminate the Atrato River basin, its tributaries and all the riparian territories, to recover its eco-systems and avoid additional environmental damage to the region. This plan will include measures such as: i. the reestablishment of the Atrato River channel, (ii) the elimination of area banks formed by mining activities, (iii) the reforestation of areas affected by legal and illegal mining.”

Likewise, it establishes that the ministry of defense, the police and national army should provide a plan to end illegal deforestation and mining, including restriction and prohibition of the transportation of substances like mercury and cyanide, in addition to the seizure of machinery and neutralization of dredges.

Simultaneously, the court ordered the creation of “…pa holistic action plan which allows us to recover traditional methods of subsistence and nourishment within the concept of ethno-development which assures the area’s food security, which has suffered due to the contamination of the Atrato River and to the intensive development of illegal mining activity…”, directed to re-establishing the rights indigenous communities that inhabit the Atrato River basin.

To finalize, it establishes studies to be carried out regarding the toxicology and epidemiology of the Atrato River, it’s tributaries and communities, through which it’s level of mercury contamination will be determined.

The court orders should be carried out within a three month and year long period within the publishing of the sentence.

The Atrato River and mining

The Atrato River, extending 750km, is the most abundant River in Colombia and the third most navigable (500km), receiving boats up to 200 tons. It has 150 tributaries, and receives over fifteen rivers and 300 ravines with a 500-meter width.

According to the court declaration, “the illegal mining impact of the Atrato River is so strong that today it’s practically impossible to determine the original channel that River once had”.

The photos below make up part of the evidence presented by the magistrate upon their visit to the Atrato River area in January of 2016, which provide evidence of the catastrophe.

Folio 2110 of proof record No. 5. In the graph you can see an illegal mining camp or settlement with dredgers and backhoes. January 29, 2016.

Folio 2114 of proof record No. 5. Dredge or “dragon” – as the local communities call it – performing sand removal activities on the bed of the Quito River (tributary of the Atrato). January 29, 2016.

Folio 2116 of proof record No. 5. Activities of dredging, processing and illegal gold mining in the Quito River. January 29, 2016.

Folio 2118 of proof record No. 5. Dredge or “Dragon” as called by the local communities, carrying out sand removal activities in the Quito River bed (tributary of the Atrato). January 29, 2016.

Folio 2124 of proof record No. 5. Image of a virgin forest, free of mining and forestry. January 29, 2016.

Folio 2126 of proof record No. 5. Image of the transformation produced by mining activities in the Chocoan jungle. January 29, 2016.

Folio 2129 of proof record No. 5. Destruction of the Quito River channel (tributary of Atrato). January 29, 2016.

Folio 2129 of proof record No. 5. Flood in the native forest caused by the actions of dredgers in the Atrato River. You can also see mountains or “islands” of sand in the River which are the result of illegal mining. January 29, 2016

Folio 2130 of proof record No. 5. Overview of the effects of illegal mining with heavy machinery and toxic chemicals on the Atrato River. January 29, 2016. January 29, 2016.

Folio 2131 of proof record No. 5. Destruction of the Atrato riverbed. January 29, 2016.

Conclusion: The Eco-Centric approach adopted by the Court

In order to reach this ruling which recognized the Atrato River as a subject of rights, the magistrate carried out a detailed study of national and international jurisprudence on the environment, bio cultural rights and technical foundations given by experts regarding mining in the Atrato River and other philosophical foundations.

The latter, in line with the philosophical foundations adopted, established (according to the ecocentric approach), that the earth does not belong to man, but, on the contrary, man belongs to the earth.

“According to this interpretation, the human species is only one more event along the evolutionary chain that has lasted for billions of years, and is therefore in no way the owner of other species, biodiversity or natural resources as well as the fate of the planet. Consequently, this theory conceives of nature as a true subject of rights that must be recognized by the state and exercised under the authority of their legal representatives, for example, by the communities that inhabit it or have a special relationship with it.”

Therefore, we overcome the idea that Nature should be protected exclusively to avoid a catastrophe that extinguishes the human being, as if humans were the only dignified being with rights existing on the planet. Rather, the understanding is that Nature is conformed by many other individual beings, each of whom has dignity. Therefore, individual rights must be guaranteed and protected by human beings as one of the species that inhabits the Earth.

In this vein, the statement is as follows:

“…the great challenge facing contemporary constitutionalism in regard to the environment, consists of accomplishing the effective protection of nature, cultures and lifestyles associated with her and biodiversity. Not only for material, genetic or productive utility for the human being, rather because when dealing with a living entity composed of other life forms and cultural representations, they’re subject to individual rights and their holistic protection and respect becomes imperative on behalf of states and societies. In synthesis, only through an attitude of profound respect and humility with nature, her inhabitants and their culture, is it possible to relate to them in just and equitable terms, disregarding the concept that nature is limited to utility or economic efficiency.”